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Regardless of where they were having the conversation, these teachers violated FERPA and the PSC Code of Ethics on several counts. Beyond that, they showed poor judgment by making defamatory remarks about a student and his mother in a public place. This situation is tricky because the teachers were having a conversation outside of school. Not only that, the conversation wasn’t recorded in any way that fits the definition given in the FERPA regulations. The regulations define “records” as “any information recorded in any way, including, but not limited to, hand writing, print, computer media, video or audio tape, film, microfilm, and microfiche” (20 U.S.C. 1232g). FERPA allows conversation between educators related to student records if there is a legitimate educational interest. The educators at the bar weren’t having a professional discussion related to education, they were maligning a student and his mother. They identified the student and the mother by name. Under FERPA, names are most definitely considered “personally identifiable information.” (34 CFR Part 99). Despite not being recorded, the conversation does violate FERPA and there have been court cases regarding situations very similar to this one.[“Write my essay for me?” Get help here.]
It is even easier to see that these educators violated the PSC Code of Ethics. They have strict rules about confidential information and the ethical treatment of it:
Unethical conduct includes but is not limited to: sharing of confidential information concerning student academic and disciplinary records, health and medical information, family status and/or income, and assessment/testing results unless disclosure is required or permitted by law. (O.C.G.A. § 20-2-200)
The educators didn’t exactly start announcing Dean’s grades, but they did make it clear that he was a poor student who behaved badly. They then clearly identified his mother and defamed her as well. There was no legitimate educational reason for these educators to be discussing this student and certainly not in this way. Recently the Family Policy Compliance Office (FPCO) has taken a hard line against this sort of unprofessional gossip. [Need an essay writing service? Find help here.]
- Assuming there is a FERPA violation, can Ms. Green sue – the teachers? -the school district? -you?
Disciplinary action for the educators would begin with a complaint filed with the FPCO. They would investigate and the educators would face disciplinary action if they were found guilty of violating FERPA. Discipline can include anything from temporary work suspension to prosecution if any laws were broken. In this case, I believe Ms. Green does also have legal grounds to sue for defamation of character. Regardless of the obvious FERPA violation, the educators have potentially harmed Ms. Green’s reputation as well as her son’s.
Defamation can be difficult to prove, as it is often based on unrecorded conversations, gossip and other unreliable forms of communication. The gray area of defamation law is that it often butts up against freedom of speech. In the case of the gossiping teachers, however, I don’t believe Ms. Green would have any problems proving that she and her son had been publicly defamed.
Though the laws vary by state, defamation is based on a statement that is published, false, injurious and unprivileged. The conversation between the teachers qualifies as a statement and when the bartender overheard it, it became “published.” The teachers said that Dean was a terrible student and his mother, Ms. Green, was an idiot. Then they said she would probably let her son eat paint chips. Each one of these comments could qualify as “injurious” to someone’s character. The last qualifier for a defamation claim is “unprivileged.” In some situations, “free speech is so important that the speakers should not be constrained by worries that they will be sued for defamation.” (Doskow, n.d.) In this case, the conversation as definitely unprivileged; there was no greater good to be achieved by these educators having that conversation.
As I mentioned before, there have been cases recently that greatly resemble this situation. In 2011, a principal mentioned a student’s name, his grades, and that he was disabled in a conversation with a fellow staff member. This conversation took place outside of school, but was overheard by someone who knew the student. A complaint was filed and the FPCO found that the principal had violated FERPA during the conversation. While it is often necessary for educators to share information about students, the FPCO has begun shining a light into the gray area between educators sharing professional information and just plain gossiping:
FERPA certainly does prohibit school employees from sharing education records and information derived from education records with school employees who do not have a legitimate educational interest. And FERPA, not to mention common sense and common courtesy, dictates that such sharing should never take place in public, where it may be overheard by other parents or students. (Sutton, 2012).
- What is Ms. Green’s recourse, if any, for this situation?
Ms. Green has several avenues for recourse in this situation. She can explore her state’s laws on defamation of character and most likely successfully sue the educators. The FPCO has disciplinary measures for violations. They often begin with a warning, but these disciplinary measures don’t just affect the educators who violate FERPA. FERPA applies to any educational facility that receives funding from the U.S. Department of Education. The Department of Education can remove funding from any educational institution that violates FERPA. The Act clearly states that FERPA is a list of “conditions for availability of funds to educational agencies or institutions.” (20 U.S.C. § 1232g). So while I, as the principal, would most likely not go to prison or have to pay any personal fines, the school and/or the school district would suffer greatly without funding from the Department of Education. [Click Essay Writer to order your essay]
Though she could sue based on defamation of character, Ms. Green cannot personally sue the school or anyone involved based on a FERPA violation. In order to see any disciplinary measures handed to the school, Ms. Green will need to use the appropriate channels. Before she jumps into a legal battle with the school district or hires a lawyer to sue, she needs to file a complaint with the FPCO. The educators who were discussing her and her son might do this often. They showed, at the very least, poor judgement and, at worst they were maliciously gossiping with no mind about who might hear them. Ms. Green can file a complaint in writing. It must be submitted in writing within 180 days of the incident by a parent or a student over 18. The written complaint “must contain specific allegations of fact giving reasonable cause to believe that a FERPA violation has occurred.” (Family Policy Compliance Office, n.d.). The waitress was obviously able to remember what the educators said, so there is at least one reliable witness to this violation. Considering the FPCO’s careful monitoring of information privacy, I believe that Ms. Green and her son would be able to show that FERPA was violated.
Code of Ethics for Educators, O.C.G.A. § 20-2-200; 20-2-981 through 20-2-984.5
Doskow, E. (n.d.) Defamation Law Made Simple.
Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.
Family Educational Rights and Privacy Act (FERPA), 34 CFR Part 99.
Family Policy Compliance Office. (n.d.) Filing a Complaint Under the Family Educational Rights and Privacy Act (FERPA).
Sutton, K. (2012, August 11). FPCO Finds FERPA Violation Based on “Gossip” Between School Employees.